University of Louisville Law Faculty Blog
Another excerpt from my article.
Unfortunately, there have been other cases, besides Nathan Katz, where the courts and even the Board have treated Performance Measurement as an electioneering, rather than a surveillance, case. For instance, the United States Court of Appeals for the Ninth Circuit has interpreted Performance Measurement to stand for the principle that "[i]t might be possible to find that areas some distance from the polls should be closed to campaigning because they had to be passed through in order to vote."103 The Board in Herb A. Cook interpreted Performance Measurement to support the Milchem principle requiring that "interested parties refrain from electioneering or even talking to employees in the polling area waiting to vote."104
103. Robert's Tours, Inc. v. NLRB, 578 F.2d 242, 244 (9th Cir. 1978). The conclusion of law itself is not in error, because, in certain circumstances, weighing the Boston Insulated factors may lead to the conclusion that campaigning in an area voters must pass is objectionable. The difficulty is in interpreting Performance Measurement, in which there was no evidence of campaigning by the company president, as supporting such a conclusion.
104. Herb A. Cook, 182 NLRB 796, 810 (1970). This principle accurately reflects Milchem. In Performance Measurement, however, there was no evidence of the company president conversing with employees, and, thus, no support for such an interpretation of the case.
Here is an excerpt from my article that mentions cases that have properly distinguished surveillance cases from electioneering cases.
It is unfortunate that the Board did not have the opportunity to harmonize its precedents, in the Nathan Katz case, as directed. It could have done so in the following manner.
In Nathan Katz, the D.C. Circuit confused a line of cases that deal with surveillance as objectionable conduct, with the line of cases that determines when electioneering is objectionable conduct. Employer conduct that interferes with employees' protected section 7 rights to join or refrain from joining a union violates section 8(a)(1) of the National Labor Relations Act.79 Employer surveillance has long been held to be such an unfair labor practice.80 This is because surveillance interferes with employees' protected rights and tends to inhibit employees' future union activities.81 Violations of section 8(a)(1) often amount to objectionable election activity.82 In addition, conduct that does not independently constitute an unfair labor practice can be found to constitute objectionable activity.83 Electioneering is one such type of conduct.84 The Board prohibits electioneering at or near the polls in order to "safeguard its electoral process from conduct which inhibits the free exercise of employee choice."85
As recognized by the ALJ, Electric Hose and Performance Measurement are not electioneering cases, they are surveillance cases. Electric Hose is clearly a surveillance case on its face.86 The ALJ's holding was based on the rationale that the supervisor's implicit purpose in observing the voting was to let the employees know they were being watched.87
Also, Performance Measurement has correctly been interpreted as a surveillance case by the majority of cases to rely upon it. In Eagle-Picher Industries, Inc., two supervisors briefly stood in the aisle leading to the voting area while voting was ongoing.88 The union alleged in its objection that the supervisors had engaged in improper electioneering. The ALJ found that this allegation was not supported by the evidence. The ALJ further discussed how, by claiming that the supervisors' presence in the aisle "would have made the employees feel ‘under the glass' of the employer,"89 the union was actually claiming improper surveillance, not improper electioneering. Moreover, the ALJ held, in reliance on Performance Measurement, that the supervisors' conduct "could not have given any employees the impression that their voting was undersurveillance."90
The holding of Performance Measurement was applied to another case, ITT Automotive,91 which featured extensive testimony regarding alleged surveillance. Several employees testified that managers and a supervisor were continuously standing in a circle in an area where employees had to pass through to vote and where the managers and supervisor could watch the employees waiting in line to vote.92 Relying on Performance Measurement, the ALJ found that the continued presence of the managers and supervisor at a location employees were required to pass, "from where they observed the employees while waiting . . . outside the door to the polling place" interfered with the election.93
In Blazes Broiler,94 a union agent sat in the employer restaurant in a section open to the public, during the second voting session. He was approximately twenty to thirty feet from the door to the banquet room where the voting occurred. While sitting, his view of the entrance to the banquet room was blocked by a five-foot wall. He only occasionally stood up. Employees entering and leaving the corridor leading to the banquet room passed within a few feet of the union agent.95 The employer argued, in reliance on Performance Measurement, that the union agent's presence was objectionable. The hearing officer interpreted Performance Measurement as a "non-electioneering case."96 The hearing officer focused on the alleged surveillance stating that Performance Measurement involves "an Employer's President who stationed himself by the door to the voting area where he could observe exactly who went in to vote."97 The hearing officer distinguished Performance Measurement because, in the instant case, the union agent had no direct view of the entrance to the banquet room. The hearing officer held that although the union agent "could see who entered the hallway leading to the banquet room . . . [h]e had no way of knowing who was entering the hallway to vote . . . ."98 Thus, the Board held that the union agent's conduct was not objectionable.99
Member Hunter concurred, but suggested that he would overrulePerformance Measurement.100 He disagreed with Performance Measurement to the extent it "established a per se rule that the mere presence of a party to an election outside the polling area constitutes objectionable conduct."101 Instead, he recommended following Boston Insulated Wire by examining the conduct of a party that stays outside the polling area during an election under the totality of the circumstances.102
79. National Labor Relations Act, Sections 7 & 8, 29 U.S.C. §§ 157, 158 (2000).
80. THE DEVELOPING LABOR LAW: THE BOARD, THE COURTS, AND THE NATIONAL LABOR
RELATIONS ACT 162, (Patrick Hardin ed., 4th ed. 2001).
81. Id. at 163.
82. Id. at 93.
83. Id. at 445.
84. Id. at 465.
85. Boston Insulated Wire & Cable Co., 259 N.L.R.B. 1118, 1118 (1982).
86. Electric Hose and Rubber Co., 262 N.L.R.B. 186 (1982).
87. Id. at 216.
88. Eagle-Picher Industries, Inc., 331 N.L.R.B. 169, 185 (2000).
91. ITT Automotive, 324 N.L.R.B. 609, 623 (1997).
92. Id. at 623-24.
93. Id. at 625.
94. 274 N.L.R.B. 1031 (1985).
95. Id. at 1032.
99. Id. at 1031-32.
100. Id. at 1031 n.3.
Another excerpt from my article.
Considering all the applicable factors, the Board has found that electioneering was not objectionable in several additional cases. In Alson Manufacturing,14 three employees' testimony was credited as follows. One witness saw two union representatives standing in the parking lot outside the warehouse approximately one hundred feet away from the voting booth speaking with some other employees. The second witness testified that he saw the remaining union representative talking to a group of employees approximately one hundred feet away from the voting booth and that he saw one of the employees in the group later vote. The third witness saw the same union representative standing twenty-five feet from the voter check-in table while the election was ongoing but voting had finished. He did not see the representative speak to any employee.15
The Board held that the union representative's conduct was not objectionable.16 The Administrative Law Judge (ALJ) reasoned that while the conversation occurred near the polling area, the conduct was de minimis in nature. The representative spoke with a group of employees, only one of which had not voted. That vote could not have affected the outcome of the election. The ALJ further reasoned that the representative's mere presence approximately twenty-five feet from the voting booth after voting had been completed could not affect the outcome of the election.17
In Sterling Faucet Co.,18 four employees were campaigning for a union for approximately twenty minutes outside the cafeteria where the election was held. The employees distributed union literature while wearing union buttons and hats. Two employees stood by the time clock; the third was approximately forty feet from the cafeteria door; and the fourth was approximately six feet from the door. All stood in the main aisle which the employees normally followed from the entrance, at the time clock, to the cafeteria.19 The Board held that the employees' electioneering did not constitute objectionable conduct. The ALJ reasoned that the electioneering did not occur in a no-electioneering area.20 Rather, the nearest electioneerer stood approximately six feet from the door of the cafeteria and could not be seen from within the polling place.21 The ALJ further reasoned that at no time were any employees waiting in line outside of the cafeteria to vote.22
In Harold W. Moore,23 the election was conducted at a warehouse. The voting area was about thirty feet from the entrance to the warehouse. Three union representatives stood in the parking lot outside the warehouse approximately thirty feet from the entrance. They spoke withapproximately six to eight employees. The conversations lasted from ten to fifteen minutes and occurred while the polls were open.24 The Board held that the conversations, even if deemed to be electioneering, were not objectionable. The Board reasoned that the electioneering was not substantial and did not take place in a no-electioneering area. The Board held that the electioneering was not so near the polls, under the circumstances, as to be objectionable.25
The D.C. Circuit has also applied these factors to find electioneering unobjectionable. In Overnite Transportation Co. v. NLRB,26 the union held a "raucous" rally near the polling center.27 It was attended by an international organizer, the international president, and the president of the local union. Approximately one hundred employees gathered, held acookout, and dispensed free food and drink. The crowd constantly hooted, hollered, and chanted slogans. Passing truckers honked their horns as they drove by the gathering. The Board held there was no unlawful electioneering.28
The D.C. Circuit upheld the Board's decision.29 The D.C. Circuit stated that
[t]he Board generally considers the nature and extent of theelectioneering, whether it happened within a designated ‘noelectioneering' area, whether it was contrary to the instructions ofthe Board's election agent, whether a party to the electionobjected to it, and whether a party to the election engaged in it.30
The D.C. Circuit then applied the factors and found that the employer had failed to demonstrate that there was a no-electioneering area, that any instructions were issued by the Board agent, that any party had objected to the union rally, or that the union was responsible for directing or participating in any objectionable conduct.31
14. 230 N.L.R.B. 735, 740 (1977), enforced at 599 F.2d 1057 (9th Cir. 1979).
16. Id. at 741.
18. Sterling Faucet Co., 203 N.L.R.B. 1031 (1973).
19. Id. at 1037.
21. Id. at 1038.
23. Harold W. Moore, 173 N.L.R.B. 1258 (1968).
24. Id. at 1258.
26. Overnite Transportation Co. v. NLRB, 140 F.3d 259 (D.C. Cir. 1998).
27. Id. at 269.
29. Id. at 270.
I thought it might be useful to some to provide a series of excerpts from my article Questioning the D.C. Circuit; Harmonizing Board Precedent: Why Mere Presence of an Organizer Should Not Invalidate a Board Election. While the article does not contain the most current information on the topic, it might be a useful starting place for anyone researching the topic of basic Board election law or for anyone dealing with potential or actual organizer presence at an election.
This Article provides an overview of the Board's electioneering precedent, discusses the case of Nathan Katz, and then suggests the manner by which the Board can harmonize its precedents dealing with the presence of organizers in the election vicinity, as requested by the D.C. Circuit in the Nathan Katz decision.
A. The Board's Electioneering Rules
A few basic rules govern electioneering. Peerless Plywood Co.2 prohibits mandatory election speeches to massed assemblies of employees on company time within twenty-four hours of the election. Milchem, Inc.3 prohibits sustained conversation with prospective voters waiting to cast their ballots, even where the topic of conversation is unrelated to the voting.4 Ordinarily, however, electioneering will not fall within these rules, and the Board will consider a number of factors to determine whether electioneering interfered with the free choice of the voters. The Board considers whether the conduct occurred at or near the polling place, the extent and nature of the electioneering, whether it is conducted by a party to the election or employees, and whether it is within a designated no-electioneering area or contrary to the instructions of the Board agent.5
1. Nathan Katz Realty v. NLRB, 251 F.3d 981 (D.C. Cir. 2001).
2. Peerless Plywood Co., 107 N.L.R.B. 427 (1954). "[T]he combined circumstances of (1) the use of company time for preelection speeches and (2) the delivery of such speeches on the eve of the election tend to destroy freedom of choice and establish an atmosphere in which a free election cannot be held." Id. at 429-30.
3. Milchem, Inc., 170 N.L.R.B. 362 (1968).
4. Id. at 362 ("[T]he standard here applied insures that no party gains a last minute advantage over the other, and at the same time deprives neither party of any importantaccess to the ear of the voter."); see also Bio-Medical Applications of Puerto Rico, Inc., 269 N.L.R.B. 827, 829-30 (1984) (arguably extending the Milchem rule to prohibit sustained conversation with prospective voters in the entire no-electioneering zone when one is designated).
5. Boston Insulated Wire & Cable Co., 259 N.L.R.B. 1118, 1119 (1982).
As previously promised, here are some observations about drafting Questions Presented.
While there are several different formats traditionally used for Questions Presented, in my class, we practice drafting one that incorporates both the legal issue and key relevant facts. The goal is to write a Question Presented that comports with the theory of the case and suggests the desired answer. It is persuasive without being "argumentative." Rather than use adjectives and adverbs, the Question Presented persuades through the choice of words and the choice of facts to emphasize.
Many factors, which are sometimes countervailing, can lend toward making a Question Presented persuasive. Three interesting factors to consider are the length of the Question Presented, whether the Question Presented accurately represents the scope of the issues the court will review, and the framing of the Question Presented.
Generally a short question presented is easier for the reader to understand than a long one. Sometimes, however, it is necessary to write a longer than ideal Question Presented in order to frame a question affirmatively or incorporate significant facts.
Turning a Question Presented that suggests a "no" answer into one that suggests a "yes" answer can sometimes decisively change the persuasiveness of the Question Presented by casting it in a more affirmative light. Doing so may, however, lengthen the Question Presented or broaden the scope beyond the limited issues that the court will actually consider.
In recent discussions with my colleagues and students, I have had the chance to see a concrete example of how considering these three factors can aid in drafting an effective Question Presented. The brief the students are working on poses the following limited question:
"Whether the need to obtain clothing for Druce constituted an exigent circumstance under the Fourth Amendment to the United States Constitution."
Here is a Question Presented that mirrors the framing of the certified question.
Can the Government prove Fourth Amendment emergency circumstances to enter an arrestee's home when the arrestee, who was standing compliantly outside the home, refused consent to enter for the purpose of obtaining clothing?
Here is one that frames the question affirmatively, rather than negatively. It is, however, broader in scope than the certified question.
Is an individual's Fourth Amendment right "to be secure in [his] . . . house" breached by a police officer's warrantless entry into his home to obtain shoes, socks, and a shirt for him given that he expressly denied consent to enter, was arrested outside his home, and had knowledge of the surrounding terrain? (This question provided courtesy of Connie Barr.)
Here are two that frame the question affirmatively and attempt to limit the Question Presented to the scope of the certified question. They are rather lengthy.
Does the Fourth Amendment right to be free from unreasonable searches preclude the Government from asserting emergency circumstances to enter into an arrestee's home when the arrestee, who was standing compliantly outside the home, refused consent to enter for the purpose of obtaining clothing?
Is an individual's Fourth Amendment right "to be secure in [his] . . . house" breached by a police officer's warrantless entry into his home to correct perceived clothing exigencies by obtaining shoes, socks, and a shirt for him given that he expressly denied consent to enter, was arrested outside his home, and had knowledge of the surrounding terrain? (This question provided courtesy of Connie Barr.)
While ultimately each of these Questions Presented is probably effective, thinking about these factors can aid in considering the possibilities and drafting a Question Presented with which you are satisfied.
Last week my class discussed oral arguments. One student raised a question that many others doubtless have before their first oral argument. What do I do if I don't know the answer to a judge's question?
In response, we discussed tips for answering a judge's question. These tips are not only helpful for first-time advocates but also might be a nice refresher for those with more experience.
1. Listen closely to the judge's question. As many of use have found when engaging in public speaking for the first time, it is difficult to listen to and understand someone's question when you are nervous. Because of this, a new advocate should concentrate solely on listening to the judge's question and should not worry about a response until after the question is completed.
2. Pause and think after the judge has finished the question. After listening to the question, it is appropriate to take a few seconds to collect your thoughts and think about your response. The seconds may feel endless when you are "shaking in your boots." But to the judge and any other onlookers, a few seconds pause before you answer is expected and barely noticeable.
3. Answer the judge's question directly. For instance, if the question calls for a "yes" or "no" answer, start with a "yes" or a "no." After a direct response, explain the underlying reasons for the answer.
4. Concede when appropriate. If there is a bad fact, bad law, or other point you rightfully should concede, do so. Then explain why the concession does not harm your client's case. For a discussion of why recognizing the strengths of the opposing case and conceding when necessary enhances your persuasiveness, see Bryan Garner's interview of Judge Zagel. (That said, do not be pressured into conceding points that you do not rightfully concede.)
5. If you do not know the answer to the question, simply state that you do not know the answer. Then offer to provide an answer via supplementary brief within a short time frame. Do not make the mistake of claiming to know something you do not. For such an embarrassing encounter see this clip of Marcia Clark . Also, practice enough that there will only be one question, at most, to which you do not know the answer.
6. After answering the question, transition back to a point you wish to emphasize to the judges. This may sound easy but requires practice before the argument to do well. If you are interested in some tips for preparing for transitions, see Bryan Garner's interview of Justice Roberts in which his Honor discusses practicing the points you wish to make in your argument in different orders.
For further discussion, and additional tips, about answering judges' questions see Linda H. Edwards, Legal Writing: Process, Analysis and Organization 358-61 (4th ed. 2006). I would like to thank Jean Rosenbluth for introducing me to the clips of Judge Zagel and Marcia Clarke.
Although I normally blog about only those resources that can be downloaded for free, I am making an exception with this post and the next post in order to share what I view as two must-read books. One of these must-read books is Stephen Kellert’s Building for Life: Designing and Understanding the Human-Nature Connection (Island Press 2005).
Kellert is the Tweedy Ordway Professor of Social Ecology at the Yale University School of Forestry and Environmental Studies, as well as the Co-Director of the Hixon Center for Urban Ecology. The University of Louisville was fortunate to have Professor Kellert give the keynote lecture at a Fall 2007 symposium on Children, Nature, and Land Use, sponsored by the Center for Land Use and Environmental Responsibility.
Building for Life synthesizes research on the role of experience with nature in human development and well-being with analysis of the potential for urban design and land use to disconnect us from nature or to connect us to nature. Professor Kellert makes the case that low-impact, organic, and vernacular environmental design promotes biophilic values and the ethics of sustainability. The book’s abstract appears below:
Sustainable design has made great strides in recent years; unfortunately, it still falls short of fully integrating nature into our built environment. Through a groundbreaking new paradigm of "restorative environmental design," award-winning author Stephen R. Kellert proposes a new architectural model of sustainability. In Building For Life, Kellert examines the fundamental interconnectedness of people and nature, and how the loss of this connection results in a diminished quality of life. This thoughtful new work illustrates how architects and designers can use simple methods to address our innate needs for contact with nature. Through the use of natural lighting, ventilation, and materials, as well as more unexpected methodologies-the use of metaphor, perspective, enticement, and symbol-architects can greatly enhance our daily lives. These design techniques foster intellectual development, relaxation, and physical and emotional well-being. In the works of architects like Frank Lloyd Wright, Eero Saarinen, Cesar Pelli, Norman Foster, and Michael Hopkins, Kellert sees the success of these strategies and presents models for moving forward. Ultimately, Kellert views our fractured relationship with nature as a design problem rather than an unavoidable aspect of modern life, and he proposes many practical and creative solutions for cultivating a more rewarding experience of nature in our built environment.
Professor Eric Freyfogle, of the University of Illinois College of Law, is a prolific and thoughtful writer on the legal, socio-cultural, ethical, and ecological dimensions of private property. How we define rights or freedoms to develop and exclude shapes our land use and environmental practices. As Professor Freyfogle’s recent work demonstrates, we often misunderstand the nature of private ownership of land and therefore need to dig deeper to the foundations of property as a social institution.
Below are abstracts of and links to three articles by Professor Freyfogle that question assumptions about the right to develop and exclude.
1) Property's Functions and the Right to Develop, http://ssrn.com/abstract=1075706:
At stake in most contemporary land-use disputes, particularly those involving regulatory takings, is the legal right of land owners to develop or otherwise alter their lands in significant ways. Landowners claim that they possess or should possess this power, while lawmakers conclude that a curtailment of rights would serve the public interest. For various reasons we've had troubles seeing this conflict clearly. What development rights should landowners possess, and what powers should government have to curtail or redefine them? To address these questions we need to see that private property is basically a tool that society uses to promote the common welfare; it is a social institution in which private owners call upon government (including police, courts, and even prisons) to curtail the activities of nonowners. To decide what development options owners ought to possess, given this moral complexity, we need to consider how a sound system of private property can in practice promote the common good. This essay, drawn from a new book on private property, probes the three basic functions of private land ownership with particular regard for development rights. It also probes how increases in the development value of land are due not to labor expended by owners but to the activities of surrounding landowners as a community. This background sets the stage for answering the central question of development rights. A key conclusion is that, while landowners need and deserve substantial protection from interference with on-going activities, there is much less need to protect their hopes of initiating new land uses in the future. What landowners need most is not some protection against future laws limiting development but instead an assurance that such laws will apply widely to all similarly situated landowners.
2) Private Property: Correcting the Half Truths, http://ssrn.com/abstract=1075702:
Today's discussions about private land ownership and regulatory takings build upon a number of critical assumptions about how private property arises, how it relates to liberty, in what sense it is an individual right, what full ownership entails, and how property rights might legitimately change over time. This essay-excerpted from chapter 1 of a new book, On Private Property: Finding Common Ground on the Ownership of Land-steps back from contemporary debates to probe these fundamental assumptions. The assumptions, it claims, tend to be seriously flawed; they are no more than half-right, and need important revision to provide a solid foundation for evaluating where we stand and charting a course ahead. At root, private property is a social institution, created by law and lawmakers and appropriately revised, generation by generation. Private property does not exist primarily to protect individual liberty; indeed, it curtails liberty as much as it protects it. It makes little sense, also, to claim: that property begins when a person takes first possession of a thing; that private property can somehow be crafted as absolute; and that ownership necessarily entails expansive rights to develop. The situation is more complex, and property rights more pliable, tentative, and morally complex. Scholarly writing on private property would likely improve if commentators turned away from Supreme Court rulings on takings and focused instead on the fundamental elements of private property as an essential tool that society uses and continually reshapes to foster shared goals.
3) The Enclosure of America, http://ssrn.com/abstract=1024846:
Legal memory in the United States has largely forgotten that most of America's landscape was open to public use well into the nineteenth century. Up until the Civil War and even after, landowners in many regions could exclude the public only from lands that they took the time and expense either to fence or cultivate. In the eyes of many, the public held affirmative use rights in these open lands; the landowner's desire to exclude was irrelevant. This paper explores the range of public uses of lands in early America. It considers how and why enclosure occurred and why historians and legal scholars have largely overlooked this chapter in American history. The answers have to do with shifting ideas about the “right to property,” with the diminishing force of natural law, with narrowing ideas of liberty, and with ongoing economic and social change, particularly the coming of industrialization and its growing demand for wage labor. On top of these explanations was a general failure of defenders of the open countryside to find legal ways to talk about and structure the public's use rights. Many states were willing to set aside the common law of trespass, and did so for generations. Yet, defenders of the open countryside never produced an alternative legal vocabulary to protect these public use rights, except in specific, narrow circumstances; they never found a way to incorporate these public use rights into enduring law. Influential judges and treatise writers, largely urban and Eastern, viewed public rural-land rights with contempt. Their interpretation of the situation gained ascendancy by the late nineteenth century, and it has prevailed ever since.
We are captivated by examples of dysfunctions and our observations of imperfections in social systems. We do this with families (just take a look at television programs that highlight family dysfunctions). And we do it with land use regulation. However, just as the family remains a functional, adaptive, dynamic, and resilient institution in society, so does the land use regulatory system.
“The Structure of the Land Use Regulatory System in the United States,” which I recently published in the Journal of Land Use and Environmental Law, studies land use planning, regulation, and decision making from a systematic perspective, noting the functionality, adaptability, dynamism, and resilience of this system in mediating between people and their environments. The article can be downloaded in PDF for free from SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020305. Below is the abstract:
The land use regulatory system has been criticized for causing or failing to solve social problems and for perceived inherent defects, such as inefficiency, inequality, and environmental harm. These criticisms fail to understand the land use regulatory system in the United States as a dynamic, functional, adaptive system.
This paper systematically analyzes the: 1) functions; 2) location and scale; 3) components; 4) processes; and 5) values of the land use regulatory system in the United States. If we are to improve our land use practices to be fairer, more efficient, and more ecologically responsible, we must understand how land use planning and regulation function and change over time.
Particular attention is given to the role of land use regulation as a mediator between people and places, between communities and power, and between freedom and boundaries. Additional attention is given to the broad array of forces shaping land use decisions, the “thinness” of land use law as a set of rules and limits (contrasted with its role as a source of tools, authority, and discretion), and the “patchiness” of land use regulatory authority in the United States.
This paper also examines a specific issue of law and policy: the extent to which the land use regulatory system can value and conserve ecosystem services – the humanly beneficial services that nature provides. The paper explores both barriers to and opportunities for accounting for ecosystem services in land use planning and regulation.
Our legal and policy analyses of land use and environmental issues often overlook the role of religious belief. Faith and spiritual values shape land use behaviors, policy choices, and social ethics. A systematic study of the relationships between religious faith and land use and environmental policies can not only inform our understanding of current practices but also aid in assessing the potential for more environmentally responsible land use decisions. My own commitment to environmental conservation and social justice flows out of my Christian faith, not a particular political ideology or policy pragmatism, even though public policy is necessarily secular, pragmatic, and political. If we avoid or dismiss assertions of religious values in land use and environmental policy, our empirical analysis is inadequate and our normative judgments are biased.
Two relatively recent articles do an excellent job of analyzing the relationships between religious values and the content of our environmental laws.
In "The Spiritual Values of Wilderness," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=794184, Notre Dame law professor John Copeland Nagle addresses the spiritual values of the Wilderness Act of 1964, as the following abstract describes:
The Wilderness Act of 1964 is the principal legal mechanism for preserving wilderness in the United States. The law now protects over 100 million acres of federal land, half of which is in Alaska. Yet the contested meaning of the term wilderness continues to affect the management of those wilderness areas, and the designation of additional lands as wilderness areas. Much current thinking about wilderness emphasizes the ecological and recreational interests that Congress cited when it enacted the law. These justifications for wilderness preservation are important, but they are incomplete. They are best supplemented by a better understanding of the spiritual values of wilderness. Religious conceptions have long informed American attitudes toward wilderness, beginning with the hostility that early settlers gleaned from Old Testament images of wilderness lands, and later appearing throughout the writings of John Muir. More recently, the witnesses testifying on behalf of the proposed Wilderness Act during the 1950's and 1960's repeatedly sounded spiritual themes, including biblical examples of the values of wilderness. The decades since the enactment of the law have produced a substantial theological literature that explores the meaning of wilderness. This article integrates the writing about the spiritual values of wilderness into the discussions of the management of wilderness areas, relying upon the examples of Alaskan wilderness lands to consider how to identify new wilderness areas and how to manage existing areas.
In "World Religions and the Clean Water Act," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=914571, Pepperdine land use professor Shelley Saxer and law-and-theology scholar Daryl Fisher-Ogden, explore the common spiritual and ethical themes of major world religions concerning water quality:
Religion could help save the ecology of our planet. Religious ideals are at the core of many people's value system and speaking to this core may help realize the radical ethical changes required to save our planet. Like other political movements throughout the history of the United States, the environmental movement is often inspired by religious ideals. However, sometimes religious values are suppressed in public discourse about environmental law and policy because Americans are uncomfortable with combining religious values and government policy. This article contends that religious values from diverse world religions can inform policy choices in developing regulatory schemes that protect air, water, and land resources. The incorporation of stories from our global religious heritage may enable us to establish a relationship with nature that can provide for human needs while protecting our environmental resources. With the moral power of religion behind an enforcement plan, it has a better chance of success.
First, we examine the major world religions and indigenous spiritualism in an effort to discover how religious views of the human relationship with nature generally influence environmental laws, and more specifically water law. The views towards water held by indigenous people, Buddhists, Jews, and Christians are similar in many respects in that theirs is a religious ethic to preserve nature as it is found in this world, even while their adherents must, by necessity, utilize these resources. Muslims also seek preservation of water quality with a sense of stewardship for future generations while Hindus view water as a life giving force in the world. Regardless of the religious background, there is a well-spring of popular spiritual support for greater preservation and care about water and its quality. Second, we examine the current legal views about the human relationship to the environment, including the definition of property and the constitutional basis for environmental rights, and also consider how world religions view the human relationship to the environment. Third, we practically incorporate religious values into a regulatory structure and examine the impact of religious values on clean water laws by using religious stories, images, and values to provide powerful ways to capture the attention of legislators, enforcement personnel, and the public at large.
While there may be several ethical systems within a community, often the religious and secular environmental approaches come to the same value-decision: achieving the maximum quality of water possible while still providing for human need. The article concludes by advocating that values from world religions be used as a rich, diverse, and proven framework that can enable the relationship between humans and nature to thrive physically and spiritually, rather than wither by operating at cross-purposes. If environmental laws could be designed and implemented with a greater acceptance of religious values in the public dialogue, they might be less susceptible to constant challenge. Secular environmentalists should recognize that many environmental ethical theories have been influenced by religious values and that people with religious views are their allies, not their opponents. Although secular persons may not fully understand religious motivation, by facilitating the entry of religious ideas and vernacular into the environmental dialogue they can build a coalition to achieve their desired end: environmental protection. Religious ideals can supplement secular views to help develop a more robust environmental ethic for the 21st century. Protecting our environment, the very thing which sustains us physically, is too important to be limited to a single spiritual or non-spiritual viewpoint.